On Saturday 6 August, the Guardian reported that British citizens in Portugal were facing problems due to delays by the Portuguese authorities issuing biometric ID cards confirming their post-Brexit residence status. This needs to be seen in the wider context of ongoing issues relating to the implementation of citizens’ rights for British citizens in the EU.
34,500 British citizens are estimated to have made their homes in Portugal before Brexit. They are of all ages and their reasons for moving include work, love and study.
The citizens’ rights part of the Withdrawal Agreement meant that individual member states were required to develop and implement administrative procedures for British citizens who had lawfully exercised their rights to free movement pre-Brexit to be issued with post-Brexit residence documents, just as the UK government was required to do for EU/EEA/Swiss citizens here.
Portugal was one of fourteen member states to use a ‘declaratory’ system for these purposes. This meant that resident British citizens in Portugal could exchange existing residence documents – where they had these – for a new biometric ID card attesting to their residence status under the Withdrawal Agreement, without needing to apply for a new status in the way that EU citizens in the UK and UK citizens the other 13 member states had to do, with the associated risk that their application would be rejected.
The latest statistics (January 2022) showed that the overwhelming majority (around 34,000) of the British population living in Portugal had applied to exchange existing documents for new residence permits but it was unclear how many of these applications had been completed and the process seems to have stalled once the applications were in. The result is that people have confirmation that they have applied for their new permits, but they are still waiting to be issued with them.
That suggests that the risk that Brexit could leave British citizens in the EU undocumented is materialising. Without documents attesting to residence, they face consequences for their future rights and entitlements, including access to employment and healthcare.
There is further evidence in the recent report British Citizens in the EU after Brexit – which analysed the 1,328 responses to a survey of British citizens living in the EU – that shows that a startling 30% of those taking part had not changed their legal status since Brexit.
While there are several factors that might explain this – for example having a prior status as a citizen in their country of residence – it might also indicate that some applications for post-Brexit residence status remain incomplete (as in the case of British citizens in Portugal); others have not been successful in their applications; and others still, for a variety of reasons, have not even embarked on the process of applying for their post-Brexit status.
Anecdotally, we know that Covid has also impacted on the implementation process whether in the ability of authorities to process applications or those requiring these to apply.
The human face of Brits in Portugal really lays bare why it is not only documents, but the right documents, that matter. As far as the Portuguese Immigration and Border Service (SEF) is concerned, both the proof of application and previous residence documents are sufficient for people to access health and social care, and for the purposes of travelling into and out of Portugal.
But to be effective in practice the border officials, healthcare providers, local bureaucrats, and other gatekeepers that people encounter as they go about their daily lives need to be aware of the guidance and be willing to act in accordance with it. In practice this often does not happen.
It is also a salutary reminder that entering or leaving a country is not the only place where borders are present in people’s lives. Sociologists Nira Yuval-Davis, Georgie Wemyss and Kathryn Cassidy show how employers, education providers, landlords and healthcare professionals in the UK are increasingly being expected to check the immigration status of their employees, students, tenants and those seeking healthcare – and in some cases face significant penalties if they fail to do this.
As the authors stress, this shows that the border has become an everyday presence in people’s lives, even among those who have the right to residence. If the documents supplied are not what, say, landlords expect or are familiar with, they might exercise undue caution and not offer non-citizens with accommodation.
In the June 2022 meeting of the Specialised Committee on Citizens’ Rights, UK officials raised the issues some British citizens in declaratory member states were facing in evidencing their status in order to access benefits and services, and had received reassurances from EU officials that these and other issues were in the process of being resolved.
That discussion probably covered the Portuguese case, although no minutes have been published. However reassuring it might be that such discussions are ongoing at a political level, those living with the issues, unsurprisingly, want to see a resolution sooner rather than later.
While in the UK, an EU citizen who felt their rights were not being implemented properly can complain to the Independent Monitoring Authority (IMA) which the government was required to set up under the WA to monitor the implementation of the citizens’ rights provisions for EU nationals in the UK, there is no such dedicated authority for British citizens in the EU.
Official advice is for those affected to report any breach of their rights through the EU commission’s complaints procedure (or through the EFTA surveillance authority). The question is whether the EU will take action on behalf of citizens of ex-Member States.
Nor can UK citizens any longer rely on the grassroots advocacy group British in Europe which shut down earlier this year due to lack of resource and funding. As the most influential advocacy group working in this arena, they had provided invaluable support for the British citizens living in the EU/EEA from the referendum onwards, lobbying throughout the negotiations for citizens’ rights to be upheld.
The lack of dedicated monitoring and the loss of this major player in advocacy limit the routes through which British citizens living in the EU/EEA can bring these issues to public and political attention.
By Michaela Benson, Professor of Public Sociology, Lancaster University.